Coherence in law: A way to stimulate the transition towards a circular economy? A critical analysis of the European Commission's aspiration to achieve full coherence between chemicals legislation and waste legislation – and product legislation
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | http://doi.org/10.1177/1023263X211048604 |
| Subject Matter | Articles |
Coherence in law: A way to
stimulate the transition towards
a circular economy? A critical
analysis of the European
Commission’s aspiration to
achieve full coherence between
chemicals legislation and waste
legislation –and product
legislation
Ida Mae de Waal
Abstract
This article examines the (lack of) coherence between the legislative fields that govern the life
cycle of materials and products and thus are relevant to the transition towards a circular economy
in the EU: EU chemicals, product and waste legislation. After examining the notion of coherence in
law, it provides insight into the role of coherence in EU chemicals, product and waste legislation in
light of the transition towards a circular economy. The article examines the (possible) issues that
exist at the interface between these three legislative fields by reviewing literature and EU policy
documents and looks into the relation between these issues and the (lack of) coherence between
EU chemicals, product and waste legislation. It is argued that, when looked at in light of the transi-
tion towards a circular economy, several issues might be related to a lack of coherence.
Nonetheless, the aspiration to achieve full coherence should be looked at critically.
Keywords
Coherence, circular economy, EU chemicals legislation, EU product legislation, EU waste legislation
PhD candidate at the Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL), Utrecht University, Utrecht,
The Netherlands
Corresponding author:
Ida Mae de Waal, Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL), Utrecht University, Newtonlaan
201, 3584 BH Utrecht, The Netherlands.
E-mail: i.m.dewaal@uu.nl
Article
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(6) 760–783
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211048604
maastrichtjournal.sagepub.com
1. Introduction
The European Union (EU) is currently at the start of a transition towards a circular economy
(CE). While there is no undisputed definition for ‘circular economy’,
1
the definitionusedby
the European Commission (EC) describes a CE as an economy ‘where the value of products,
materials and resources is maintained in the economy for as long as possible, and the generation
of waste is minimised’.
2
The EU transition towards a CE can be argued to have its concrete
beginnings with the 2015 EU action plan ‘Closing the loop’.
3
However, the concepts and
ideas on which the CE is based are not new. They are building upon previous initiatives and
developments,
4
starting with Stahel,
5
the philosophy of Cradle to Cradle,
6
life cycle thinking
and the life cycle approach,
7
followed at the EU level by inter alia the ‘Integrated Product
Policy’
8
of 2001 and the ‘RoadmaptoaResourceEfficient Europe’
9
of 2011. Also, the transi-
tion to a circular economy is said to be the EU synonym for the development towards
‘Sustainable Materials Management’.
10,11
The EU has already taken several steps related to EU legislation to stimulate the transition
towards a CE, such as the recent amendment of the Waste Framework Directive (WFD).
12
However, in literature and in EU policy documents it is reflected that multiple situations can
be identified where the reuse or recycling of materials and products is hampered by legislation
or where there are unexploited opportunities to enhance the transition towards a CE in the EU
through legal measures. This gives rise to the assumption that the current legal system does not
fully support and stimulate the transition towards a CE. Several of the issues relate to
1. J. Kirchherr, D. Reike and M. Hekkert, ‘Conceptualizing the Circular Economy: An Analysis of 114 Definitions’, 127
Resources, Conservation & Recycling (2017), p. 221–232.
2. Commission Communication, Closing the loop –An EU action plan for the Circular Economy, COM(2015) 614 final,
p. 2.
3. Ibid. The transition towards a circular economy was already previously announced, see: Decision No 1386/2013/EU
‘Living well, within the limits of our planet’, Annex I, para 1. Also, a previous CE action plan (Commission
Communication, Towards a circular economy: A zero waste programme for Europe, COM(2014) 398 final/2) was
repealed and replaced by the 2015 action plan.
4. See also: L. Milos, ‘Advancing to a Circular Economy: Three Essential Ingredients for a ComprehensivePolicy Mix’,13
Sustain Sci (2018), p. 864.
5. W.R. Stahel, ‘The Product-Life Factor’in S.G. Orr (ed.), An Inquiry into the Nature of Sustainable Societies: The Role of
the Private Sector (Houston Area Research Centre, 1982), p. 72–96.
6. W. McDonough and M. Braungart, Cradle to Cradle: Remaking the Way We Make Things (North Point Press, 2002).
7. See e.g. H.C. Bugge, C. Dalhammar and E. Maitre-Ekern, ‘Developing Legislation to Prevent Environmental Damage
from Products: A Herculean but Necessary Task’, in E. Maitre-Ekern, C. Dalhammar and H.C. Bugge, Preventing
Environmental Damage from Products (Cambridge University Press, 2018), p. 2−3.
8. Green Paper on Integrated Product Policy, COM(2001) 68 final; Commission Communication, Integrated Product
Policy: Building on Environmental Life-Cycle Thinking, COM(2003) 302 final.
9. Commission Communication, Roadmap to a Resource Efficient Europe, COM(2011) 571 final.
10. See e.g.: Council conclusions, ‘Sustainable materials management and sustainable production and consumption: key
contribution to a resource-efficient Europe’, 17495/10 13 Dec 2010; T.J. de Römph, ‘Pressing Forward—
Developments in the Transition Towards Sustainable Materials Management in EU Environmental Law’,in
V. Mauerhofer (ed.), Legal Aspects of Sustainable Development (Springer International Publishing, 2016), p. 513−514.
11. H. Friege et al., ‘How Should We Deal with the Interfaces Between Chemicals, Product and Waste Legislation?’,31
Environ Sci Eur (2019), p. 2; T.J. de Römph, in V. Mauerhofer (ed.), Legal Aspects of Sustainable Development,
p. 519; G. van Calster and L. Reins, EU Environmental Law (Edward Elgar Publishing, 2017), p. 270.
12. Directive (EU) 2018/851 of the European Parliament and of the Council of 30 May 2018 amending Directive 2008/98/
EC on waste, [2018] OJ L 150/109.
Ida Mae de Waal 761
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